Collecting an unpaid debt cannot be improvised. When a debtor fails to fulfil his obligations voluntarily, the creditor cannot take the law into his own hands. They must obtain an official document, the writ of execution, which is the essential legal key to implementing coercive measures. This document formalises the creditor's right and enables him to resort to forced execution to obtain what he is owed. Understanding the nature, conditions of validity and different forms of this document is essential both for the creditor wishing to recover his debt and for the debtor who suffers its effects. The assistance of a debt collection lawyer is often decisive in navigating the intricacies of civil procedure.
Definition and basic characteristics of the enforcement order
Enforcement is at the heart of civil law, enabling a creditor to force a defaulting debtor to honour its commitments. Formerly known as "enforcement measures", these actions are now grouped together under the more modern name of "enforcement proceedings". civil enforcement procedures. They enshrine a genuine right to enforcement, but this right cannot be exercised without an indisputable legal basis.
The enforceable title is precisely this basis. It is the legal instrument that officially establishes a debt and authorises its holder to pursue its recovery by coercion, with the assistance of the police if necessary. The central role of the writ of execution is to be the indispensable condition for any enforcement measureThese range from the seizure of bank accounts to the seizure of property. For an instrument to be considered enforceable, the claim it establishes must have three fundamental characteristics: it must be a liquid and due claim, and it must also be certain.
The imperative conditions of the claim: certainty, liquidity and payability
The law, in particular through article L. 111-2 of the Code of Civil Enforcement Procedures (CPCE), makes the implementation of compulsory enforcement subject to the fulfilment of three cumulative conditions relating to the claim. The absence of any one of these characteristics prevents any coercive action. A professional debt collection lawyer will ensure that these conditions have been met before initiating any proceedings on behalf of his client.
Certainty of the claim: indisputability and special cases
A claim is considered certain when its existence is current and indisputable. The enforceable title, by recording it, confers precisely this character. For example, a contingent claim, which depends on the occurrence of a future and uncertain event, cannot form the basis of an enforcement order.
However, the law on civil enforcement procedures introduces some important nuances. To obtain a precautionary measure (a seizure designed to 'freeze' assets until a final title can be obtained), a simple "claim that appears to be founded in principle" is sufficient, as set out in article L. 511-1 of the CPCE. Certainty is here replaced by mere appearance. In addition, article L. 111-10 of the same code authorises enforcement to be pursued on the basis of a "provisional writ of execution", such as a summary order. In this case, the claim has not yet been definitively established. This possibility presents a risk for the creditor: if the writ of execution is eventually annulled or amended by a subsequent court decision, "enforcement is pursued at the creditor's risk", who will then have to bear the cost of repairing all the damage caused to the debtor.
The liquidity of the claim: monetary valuation and legal criteria
The liquidity of a claim is its capacity to be valued in money. Article L. 111-6 of the CPCE states that a claim is liquid "when it is valued in money or when the security contains all the elements required for its valuation". This definition is flexible: it is not necessary for the amount to be quantified in a definitive manner in the instrument itself, but it must be determinable by a simple clerical operation based on the elements it contains (an interest rate and a term, for example). A claim whose determination would require a new court decision or the assessment of new facts would not be considered liquid. This requirement ensures that enforcement measures are not disproportionate to the amount actually owed.
Payability of the debt: due date and protection of the debtor
A debt is due and payable when the creditor is entitled to demand immediate payment. This means that the term agreed for payment has expired. A debt whose payment is scheduled for a future date is not due and cannot therefore be enforced. Article 1305 of the Civil Code provides a framework for the concept of a term. However, the debtor may lose the benefit of this term in certain situations, in particular if he reduces the guarantees he had promised the creditor. This is known as "forfeiture of the term", a formidable provision that makes the entire debt immediately payable and allows the creditor to take legal action without further delay.
The typology of enforceable titles: from court decisions to administrative acts
Article L. 111-3 of the Code of Civil Enforcement Procedures sets out a restrictive list of deeds and decisions considered to be enforceable titles. Only documents on this list can be enforced. These documents come from a variety of sources, including the courts, government departments and public officials such as notaries.
Judicial and administrative decisions
This is the most common category. Judgments, rulings and orders issued by the courts (judicial tribunals, commercial tribunals, industrial tribunals, the Court of Appeal and its various chambers, and even the Court of Cassation) or administrative tribunals (administrative tribunals, administrative courts of appeal, etc.) are considered enforceable, provided that they are "enforceable", i.e. no longer subject to a suspensive appeal such as an appeal. In practical terms, the party wishing to enforce the judgment must obtain an enforceable copy, also known as the "grosse", which is the document bearing the famous formula. Although provisional, summary orders and payment orders are also enforceable titles. Any dispute relating to the enforcement of these decisions falls within the jurisdiction of the enforcement judge (JEX). In a European context, the "European Enforcement Order" (EEO) for uncontested claims enables a judgment certified in one Member State to be enforced in another without an exequatur procedure.
Extrajudicial documents bearing the executory clause
The law also confers enforceability on certain deeds that do not result from legal proceedings. The best known of these is the notarial deed bearing the executory clause, sometimes referred to as a "plume grossoyée" deed. An acknowledgement of debt or a loan agreement signed before a notary can thus enable the creditor to proceed directly to an attachment without going to court. Other documents fall into this category, such as a certificate of non-payment of a cheque issued by a commissioner of justice (formerly a bailiff), or agreements resulting from mediation or conciliation approved by a judge, the minutes of which then become enforceable. More recently, divorce agreements by mutual consent countersigned by lawyers and filed with a notary have also been added to this list.
Securities issued by legal entities governed by public law
The State and other legal entities governed by public law (local authorities, public establishments) benefit from a privilege that goes beyond ordinary law: that of being able to create their own enforceable titles for the recovery of their debts, for example an unpaid bill owed to a hospital. This is known as the "prior claim privilege". Article L. 252 A of the French Tax Procedures Code specifies that notices of assessment, collection orders or revenue orders are enforceable instruments. A tax notice or revenue order issued by a local authority therefore allows the administration to take legal action without first having to refer the matter to a judge. The Treasury can then proceed with recovery by means of an administrative seizure by third party holder (SATD) directly from a public accountant.
It is crucial to note that the nature of the writ of execution has a direct impact on the duration of its effectiveness. The limitation period for an action to enforce a court decision is ten years (article L. 111-4 of the CPCE), whereas for a notarial deed, it is the limitation period for the claim itself that applies. This distinction is a fundamental provision in practice and all the more reason to seek professional advice.
Complex interplay of enforceable titles: couples, over-indebtedness and reforms (differentiating expertise)
Enforcement is not a mechanical process. It often comes up against complex human and legal situations that require detailed analysis. Three areas in particular illustrate these interactions: the management of debts within couples, the link with over-indebtedness procedures and the impact of recent legislative reforms.
Implications for couples' assets and joint accounts (art. 1415 of the French Civil Code)
When a creditor holds a writ of execution against a person married under a joint property regime, the question of seizable assets becomes crucial. Article 1415 of the Civil Code protects the joint assets: it provides that a loan or guarantee taken out by one spouse alone is binding only on his or her own assets and income. In principle, therefore, joint assets are protected. The spouse's express consent is required for the community to be involved.
This protection has a direct impact on recovery attempts, particularly in the case of attachment of joint accounts. Case law (in particular from the Second Civil Chamber, Civ. 2e, 21 March 2019) considers that the balance of a joint account is presumed to belong equally to each co-holder. If the obligation was contracted by only one spouse without the consent of the other, the creditor must prove that the funds in the joint account are the personal income of the debtor spouse, which is often very difficult to prove. PACS partners are jointly liable for debts incurred for day-to-day living, but not for manifestly excessive expenditure.
Enforceable title in the face of over-indebtedness of individuals (good faith and irremediably compromised situation)
The existence of a writ of execution, even a final one, can be paralysed by the opening of a court case. personal over-indebtedness procedures. The over-indebtedness commission's decision to accept the case, under article L. 722-2 of the Consumer Code (formerly L. 331-3-1), automatically suspends and prohibits all enforcement procedures for debts other than maintenance debts (such as unpaid alimony).
The outcome of the procedure depends on two essential criteria. The debtor must be in "good faith", a concept assessed by the professional judge, which excludes fraudulent behaviour or the deliberate organisation of insolvency. In addition, if the debtor's situation is deemed to be "irremediably compromised", i.e. no debt restructuring measures can be envisaged, the procedure may result in the partial or total cancellation of debts, including those recorded in a writ of execution.
Recent reforms (2025) and diversion of attachment of earnings
The attachment of wages procedure, which allows part of a debtor's wages to be deducted directly from his employer, has been the subject of a major reform applicable from 1 July 2025. This reform "diverts" the procedure from the courts: it is no longer carried out by the district court judge, but is now entirely entrusted to judicial commissioners (the new name for the profession of judicial officer). The creditor in possession of a writ of execution must first serve a summons to pay on the debtor. If no payment is made or no agreement is reached within one month, the seizure procedure may be initiated through the intermediary of a distributing judicial officer.
A national digital register of wage seizures has been set up to centralise and coordinate procedures. The employer (the garnishee) will pay the funds directly to the commissioner of justice, who will distribute them among the creditors in the event of multiple seizures. The aim of this modernisation is to simplify and speed up the collection process, by refocusing the enforcement judge on his or her supervisory role in the event of a dispute.
Obtaining and enforcing a writ of execution is a key and often complex stage in debt recovery. The diversity of titles, ranging from the classic judgment to the notarised deed for a loan, the rigour of the conditions for the validity of the claim and the interactions with areas such as family law or over-indebtedness require specialised expertise. Whether you are a business faced with an unpaid invoice or an individual, to secure your rights and choose the strategy best suited to your situation, the advice of our law firm, with expertise in debt collectionis essential.
Sources
- Code of civil enforcement procedures
- Civil Code
- Consumer Code
- Commercial code
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